If the polls are correct and Democrat Joe Biden retains his lead both nationally and in key swing states, there’s a chance we have a relatively early night on Tuesday, which is Election Day.
Alternatively, however, the race could be very close, with the winner not known to the public for days or even weeks.
For this reason, it would be wise to prepare for the many things that can go wrong on election night, from concerns over voter intimidation and ballot security to issues with the Postal Service. Due to the pandemic and the extraordinary growth of early and mail voting, the country finds itself in an unprecedented situation this election, meaning that we could be in for a number of surprises.
In particular, one thing to watch for is whether Pennsylvania, Michigan and Wisconsin — the “Rust Belt Trio” of states that handed President Trump his 2016 victory — once again are the states where the election is decided.
If the election comes down to Wisconsin, Michigan and Pennsylvania, then it’s almost a certainty that we won’t know the winner on election night. Each state’s Republican legislature refused to allow mail ballots to be opened and processed the way they are in most states: as they arrive or at least a week before Election Day.
Michigan allowed one day in advance for ballot processing. Wisconsin and Pennsylvania both did not, so mail ballots can’t even begin to be counted until Election Day, when many clerks will be busy actually running the election.
These three states are going to have clerks working in shifts around the clock to try to get all their mail ballots counted, and they have said they hope to be done by Friday, Nov. 6. But if neither Biden nor Trump has the necessary 270 Electoral College votes to win the presidency, and all three of these states are close, we could be waiting at least several days to find out the winner.
If the race comes down to these states, the focus will be almost entirely on the counting of mail and absentee ballots.
Partisan lawyers would monitor the counting of these ballots, and the concern is that Republicans might challenge so many ballots that the process slows down to such an extent that it drags out beyond Nov. 6 and even into December. Something like this has happened in living memory, when the razor-thin margin between Democrat Al Gore and Republican George W. Bush in Florida led to recounts, protests and eventually the intervention of the U.S. Supreme Court, which essentially handed the election to Bush by ending the recount after weeks of legally wrangling.
In terms of legal challenges, Republican attorney Ben Ginsberg — who helped lead the party’s election law efforts for the last 20 years but recently retired and has spoken out against Trump’s attempts to undermine confidence in the election — said they would play out in state courts, at least at first.
“There is no national election law governing the time, place and manner of elections, so I think it goes to states and their courts except in the most extreme conditions,” Ginsberg said on C-SPAN.
But as a legal battle plays out, there are a few concerns. One is social unrest. Trump has already repeatedly made false claims about cheating and a “rigged” election. There’s little reason to expect him to act differently after the election as these votes are counted. The only question is what impact this might have.
Would his supporters take to the streets? Would they surround vote counting centers? Would that spark counterprotests?
Alternatively, in the event of a Trump victory — particularly one that is helped along by the courts — will progressives rise up in the cities, many of which are still recovering from this summer’s riots?
The scenarios here are not encouraging, especially if the sitting president — instead of seeking to calm matters and prevent violence — is actually inciting, encouraging and increasing the unrest.
Second, a lengthy delay would put pressure on the state to certify its slate of electors to the Electoral College before the Dec. 8 “safe harbor” deadline. The Electoral College meets on Dec. 14, and disputes over who will fill the 538 elector positions must be resolved — under federal law — a week earlier. This is the deadline that helped lead to the end of the Florida recount in 2000.
Third, if the count is close enough, and there is unrest in the streets, then Republicans who control the state legislatures in all three of these states could argue that the process needs to be cut short and appoint electors to the Electoral College themselves who support Trump. This would essentially short-circuit and override the process of counting all the votes.
This is an extreme scenario, but the reason people are taking it seriously is that two Republican leaders in Pennsylvania — state party chairman Lawrence Tabas and Senate Majority Leader Jake Corman — were quoted talking about this possibility in September. They have since distanced themselves from this idea. But in terms of planning for unexpected twists, this cat is now out of the bag.
If legislatures bypass the voters and appoint electors of their own choosing, the governor of each state could also appoint a slate of electors; something similar to this happened in the 1960 election, when Hawaii’s governor attempted to send his own electors to Congress in the midst of a recount in the state. In that election, however, Democrat John F. Kennedy had already won the Electoral College, meaning the Hawaii results could not have decided the election.
Pennsylvania, Michigan and Wisconsin all have Democratic governors, so it’s likely that if this happened, those electors would be loyal to Biden.
The dispute would then move to Congress. The Senate receives the Electoral College results by a deadline of Dec. 23. New members of Congress are sworn in on Jan. 3, and the issue would be taken up on the first day of the new Congress, Jan. 6.
At this point, it’s hard to know what would happen. Control of the Senate would be crucial, so if Democrats won a majority of Senate seats in the Nov. 3 election, that would likely mean Biden would be awarded the presidency.
But if Republicans don’t lose control of the Senate, America will be in uncharted waters if the election reaches Congress under such circumstances.
Cover thumbnail photo illustration: Yahoo News; photos: AP (2), Getty Images (2)
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